Judgment delayed for Citizens for Fauquier County's Freedom of Information Act lawsuit related to Amazon data center

The Fauquier County Circuit Court case involving Citizens for Fauquier County’s request to review over 3,000 emails between former Town Manager Brandie Schaeffer and Amazon representatives was delayed until after the town of Warrenton’s legal counsel has had a chance to confer with the Town Council regarding a legal conflict and respond to the court’s inquiry.

On Wednesday, Circuit Court Judge Alfred Swersky of Alexandria told the nonprofit Citizens for Fauquier County and the town’s legal counsel that after reviewing the case, it “dawned” on him that the law is not explicit about who has the authority to designate someone as the “chief executive officer” of a municipality. Swersky also noted he could not find guidance or precedent that granted him the power to determine who is the chief executive.

“I can’t believe the absence of authority on this,” Swersky said during the hearing.

The nonprofit's lawsuit against the town of Warrenton alleges Town Clerk Stephen Clough violated the Virginia Freedom of Information Act by withholding 3,150 emails -- 3,142 by Scheffer, and eight by Mayor Carter Nevill -- which Clough said are immune to Freedom of Information Act requests under the state’s executive privilege clause.

In early January, Nevill handed over the eight emails to the nonprofit days before the town was scheduled to appear in court.

In addition to claiming that Schaeffer’s emails are a matter of public interest because the council will be voting on an Amazon Data Services special-use permit, the nonprofit's legal counsel, Michael Brady of Whiteford, Taylor & Preston, argued the mayor and town manager cannot both hold the title of chief executive and therefore both cannot invoke executive privilege.

Schaeffer left the town last year to go work for Amazon.

Town Attorney Martin Crim argued the case should be dismissed because the nonprofit had “misinterpreted” the law.

During the first court hearing on Jan. 6, Swersky said he would review several examples of emails withheld by the town before making a final judgment.

Brady repeatedly asked Swersky during both hearings on Jan. 6 and Jan. 25 to let his legal team review the emails the town submitted to the court. Swersky declined the request.

Swerksy granted Crim a week to review and respond to additional material filed by the the nonprofit on Friday and consider his legal query about the law.

Brady argued against a delay because the Town Council has scheduled a public hearing on the Amazon Data Center on Feb. 14 in the Fauquier High School auditorium. He noted the issue would be moot if the council votes before the emails are released.

But Kevin Ramundo, president of Citizens for Fauquier County, said following Wednesday's hearing that Swersky told Brady to ask Crim to consider letting his team review the withheld materials.

“It was very obvious today that the judge recognizes the importance of the Freedom of Information Act and its purpose of ensuring transparency and accountability of government officials to the public,” Ramundo said in a news release.

“We are thankful for the judge’s efforts to rule carefully and that he understands the significance of his ruling on our specific suit and its impact on others that arise elsewhere,” he added.

Swersky said he would issue an opinion following Crim’s response.